January 25, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.X.W. SVP-40-00.
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-40-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges Parrillo and Graves.
J.X.W. appeals from an order entered on April 30, 2007, authorizing his continued involuntary civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.
The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."
N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.
[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978).
The trial court's determination may be modified "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. denied, 177 N.J. 490 (2003).
Three witnesses testified at the hearing on April 24, 2007. Dr. Luis Zeiguer, a psychiatrist, testified for the State regarding his psychiatric assessment of J.X.W. on April 19, 2007; Dr. Brian Friedman, a psychologist, testified with regard to a "Treatment Progress Review Committee Annual Review Report" dated January 8, 2007, as well as his more recent treatment notes; and Dr. Gregory Gambone, a psychologist and a member of J.X.W.'s treatment team, testified for J.X.W.
On April 30, 2007, the trial court rendered an oral decision that included the following:
Dr. Zeiguer stated that the respondent has given substantially different versions of his own history of victimization. He has variously stated that he was sodomized by two policemen when he was seven years old or 13 years old, or that he was victimized by a 13-year-old who forced him without any reference whatever to two policemen. Neither Dr. Zeiguer nor in Dr. Zeiguer's opinion does the respondent know what's true.
The psychiatrist points out the respondent has been inconsistent in his statements relative to his marital history, his military service, his number of children, and his work history. The psychiatrist describes this as a pattern of blatantly unreliable self-reporting.
In his report and in his testimony, Dr. Zeiguer gave his diagnosis. He diagnoses pedophilia based on the respondent's sexual activity with two very young females and one male child. In addition, there is the exhibitionism, which is included in the diagnosis of pedophilia. The respondent was masturbating within sight of kindergarten children playing in their school play yard. He also diagnoses anti-social personality disorder, which includes the respondent's documented juvenile conduct disorder.
There is an additional diagnosis of alcohol and poly-substance abuse by history. This is based on the respondent's consistent self-reports over the length of many years. The anti-social personality disorder makes it very hard for the respondent to resist the impulses and poor judgments caused by his pedophilic urges. There is the added factor of respondent's substance abuse, which contributes to lack of judgment and lack of ability to evaluate the prospects of getting caught.
Dr. Zeiguer testifies that this respondent has serious difficulty controlling his sexually violent behavior. There were additional charges after early charges were dismissed. The respondent was convicted of lewdness offenses after treatment at A.D.T.C. He committed an offense while on probation. These factors are described by the psychiatrist as indicating the respondent's pursuit of his pedophilic urges. The risk is described as highly likely.
The testimony of the [S]tate's witnesses was not contradicted. The evidence was clear and convincing the respondent continues to be a sexually violent predator. He has abnormal mental conditions and personality disorder that influence his volitional, emotional and cognitive functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sex offending behavior as he has established by his re-offending after charges were first brought and dismissed and then his re-offending while on probation and after he had been treated at A.D.T.C.
He still demonstrates in his therapy that he does not adequately understand the reason for his sex offending behavior and has not adequately recognized his sexual deviance attributing his sex crimes to matters of anger and vengeance. This is a clear defect in his treatment so far. There has been no sufficient mitigation of risk by treatment effect.
The respondent has serious difficulty controlling his sex offending behavior . . . which renders it highly likely that he will re-offend and commit sexually violent offenses within the foreseeable future if not confined for further treatment. There will be a one-year review.
Based on our examination of the record, we are convinced the trial court's findings are firmly supported by substantial credible evidence, and its legal conclusions predicated on those findings are consistent with controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Perretti in her comprehensive oral decision on April 30, 2007.
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